Wednesday, March 17, 2010

Deeming Legislation Passed

By Mike Dorf

There is some serious confusion afoot about the constitutionality of the plan of the House leadership to pass health care reform indirectly, via a rule that deems the relevant bill passed without a simple yes-or-no vote on the legislation. I would note at the outset the awkwardness of the Republican Party in trying to paint the Democrats as circumventing democratic principles. Republicans and their allies are now demanding an up-or-down majority vote in the House, even as they are perfectly comfortable using their 41 votes in the Senate to prevent just such a vote in the Senate. The Wall Street Journal editorial page even refers--without any intended irony--to "the ordinary 60-vote threshold for passing major legislation."

Now, one might ask, why is it that effectively requiring 60 votes to enact legislation in the Senate is consistent with Article I, Section 7 of the Constitution, which only requires simple majority passage? The only answer ever given is that under Article I, Section 5, "Each House may determine the Rules of its Proceedings . . . ." The cloture rule is a rule of the Senate, and thus effectively immune to judicial scrutiny, even though arguments based on democratic principles and even the text of the Constitution would suggest the cloture rule is unconstitutional.

The great irony here, of course, is that the "deeming" procedure is fully democratic. In voting for the "rule," a majority of the House also votes for its "deeming provision," which, in this instance, provides that if and when the House subsequently votes for the reconciliation bill, it will deem the Senate version of the health care bill passed. Then, if the Senate votes for reconciliation in the same terms as the House, the two identical reconciliation measures having been passed, will go to the President to sign and become law. If the Senate somehow does not vote for reconciliation, or the Senate votes for a different set of provisions than the House, then the original Senate bill, now having been deemed passed by the House, will go to the President for signing.

In a moment, I'll examine the technical validity of the deeming procedure, but I want to start by reiterating the most important fact: What the House Democrats are attempting here will only succeed if a majority of House members vote for it. Thus, in both the Senate and the House, it is the Democrats who are attempting to govern with a majority, and it is the Republicans who are objecting to majority rule.

As far as the deeming procedure goes, there is no inconsistency with Article I, Section 7. To someone unfamiliar with the practice of "deeming," it can sound odd, but it is quite common. For example, numerous federal statutes "deem" Washington, D.C. a state for various purposes. Or to choose an example dearer to conservatives' hearts, numerous statutes--and the Supreme Court's constitutional jurisprudence--deem corporations persons for various purposes. Deeming is simply part of legislating.

Ah, but isn't there a difference between enacted legislation using deeming as part of defining its terms and deeming legislation passed in the first place? Not really. The key once again is that a majority of House members have to vote for the rule in order for the deeming provision to have any effect. As conceptualized quite sensibly by the House parliamentarian, a vote for the rule is a vote for the already-enacted Senate bill, subject to a condition subsequent, namely, House passage of the reconciliation measure. There are numerous analogies here too. Congress frequently grants the President authority to take various measures--such as imposing sanctions against human rights abusers or collecting duties on goods from countries that engage in unfair trade practices--only upon the happening of some condition subsequent. The 2002 Authorization for Use of Military Force Against Iraq, for example, required the President to determine that further diplomatic efforts would be futile in order for the authorization to become effective.

So there is nothing especially peculiar about Congressional action that only becomes effective on the happening of some subsequent condition. The deemer at issue here is especially un-peculiar in light of the fact that the subsequent condition is fully within the House's own control. If a majority of House members don't want to vote for health care reform, they have two ways to kill it: vote against the rule or vote against the reconciliation measure that triggers the deemer clause in the rule. If anything, the deemer approach makes the enactment of legislation in the House harder than under the normal procedure, making the argument that it somehow short-circuits Article I, Section 7, extraordinarily weak.

Is there direct precedent on point? Indeed there is. As numerous commentators have noted, Congress has used the "deeming" procedure repeatedly, especially to lift the debt ceiling. (Here is one telling discussion.) Moreover, I have found one example in which such a "deeming" was made conditional on further action by the other house of Congress:

[Congressional Record Volume 146, Number 143 (Thursday, November 2, 2000)] [Senate] [Page S11509] From the Congressional Record Online through the Government Printing Office [] [[Page S11509]] ORDER OF PROCEDURE Mr. MURKOWSKI. Mr. President, I ask unanimous consent that if between today and November 14 the Senate receives from the House of Representatives continuing resolutions funding the Government for 1 day at a time, the individual resolutions be agreed to and the motions to reconsider be laid upon the table. I further ask that if the House of Representatives passes a continuing resolution that contains language other than the funding of the Federal Government for 1 day, the Senate automatically reconvene 2 hours after receipt of the papers in the Senate and it be pending in the Senate following the granting of the routine convening requests. I further ask unanimous consent that if the House of Representatives does not pass S. Con. Res. 160, the Senate reconvene on Monday, November 6, at 11 a.m. for a pro forma session only; that immediately following the convening on Monday, the Senate immediately stand in recess until 11 a.m. on Thursday, November 9, for a pro forma session only. I ask consent that following the convening on Thursday, the Senate stand in recess until 11 a.m. on Monday, November 13, for a pro forma session only. I ask consent sent that following the convening on Monday, the Senate automatically stand in recess until 12 noon on Tuesday, November 14, 2000, as provided in the previous order. The PRESIDENT pro tempore. Without objection, it is so ordered.

Finally, I would hasten to add that I don't quite understand why House Democrats think the deeming procedure will give them political cover against election opponents who want to score points by tying them to their votes for health care reform. A vote for the rule is, after all, a vote for health care reform. But that's a political consideration beyond my expertise. As far as I can tell, the constitutional objection doesn't have much to it.


Hashim said...


Although I certainly agree with you that the political benefits of this tactic elude me, I think the constitutional objection might be more weighty than you suggest -- though I hasten to note at the outset that this is not an area with which I'm particularly familiar.

Under the "exact text" rule of bicameralism and present, if even one subsection differs between the bills passed by the house and the senate, the entire "bill" is no good, even if the bills have severability clauses and even though both chambers "voted" for the exact text of the remaining subsections. The only possible rationale for such a result, it seems to me, is a constitutional recognition that a vote for "x" is necessarily different than a vote for "x plus y."

Now, if that's right, it seems to me that it precludes bundling together different bills and subjecting them to a single vote, unless the other chamber does as well. The reason is that I fail to see any material difference between having the House vote on a single "bill" that includes both the Senate bill and the reconciliation changes as different "divisions" or "titles" -- in which case bicameralism and present plainly would not be satisfied since the Senate never voted on one "bill" with that "exact text," but instead voted for the two components of that "bill" in different votes -- and having the House vote on the "two bills" using a single vote. Either way, the purpose of the "exact text" rule is subverted, since a vote in the House for the Senate bill is not the same as a vote in the House for the Senate bill plus the reconciliation changes.

And, this, I think is what distinguishes your analogy to bills that contain conditions subsequent. You're certainly right that conditions subsequent are generally unproblematic, since both chambers pass the bill with the same text, and then an outside entity triggers the condition subsequent. That in no way implicates the exact-text-rule concern identified above. If, however, the condition subsequent is the unilateral action of one chamber, that, it seems to me, does implicate, and violate, the exact-text-rule.

To make my point in the starkest possible terms: Imagine that the Senate passed a rule saying that a vote for the last bill reported out of committee in a given session was also a vote for every other bill that had been reported during the whole year but had not yet been subject to a vote. And assume that the last bill was an "America is a great country and terrorists are horrible" bill, while the prior outstanding bills were a grab-bag of hugely controversial reforms and hugely popular programs. Do you really think that, if the rule passed as did the "last bill," it would then be consitutional for the House to then swoop in and pass some of the controversial bills and some of the popular bills, with individualized votes and with certain bills becoming law but not others? I don't think that can possibly be right, and the only difference between that hypothetical and the Slaughter solution is that the latter is limited to two bills that are germane -- but that distinction seems irrelevant to the bicameralism and presentment concerns underlying the "exact text" rule.


Michael C. Dorf said...


I'm not sure there's any procedural difference between your hypo and what Congress routinely does in omnibus legislation. Sure, Congress would be acting stupidly in your example, but that's a matter of the substance of what they're deeming enacted.

Also, if you're not focused on the condition subsequent aspect of the House move, then you need to say that all the debt ceiling measures and other laws that have been enacted by deeming provisions were invalid.

And finally, the "exact text" rule would likely be non-justiciable under the enrolled bill doctrine, so even if your view were correct, a court probably would have to accept Speaker Pelosi's attestation that the bill passed by the House was the same as the one passed by the Senate.

Hashim said...


The difference between an omnibus bill and my hypo is that BOTH chambers have a SINGLE vote for the EXACT SAME omnibus bill. Thus, bicameralism and presentment is fully satisfied. Whereas in my hypo, and the Slaughter solution, one chamber is casting a single vote on an omnibus bill while the other chamber is individually voting on discrete bills.

Nor is that just acting stupidly. Rather, it's a way for a chamber w/ a narrow majority to subordinate minority interests. The chamber forces them into a position where they have to vote for the omnibus bill -- because it contains certain things that are good, important, or impossible to vote against politically -- and thus capture their vote on the contested provision as well. Now, as I noted before, if both chambers pull the same stunt, then all is well and good, at least constitutionally. But if only one chamber does, then I'm hard-pressed to understand how that's any different than one chamber passing a bill w/ two "Divisions", one chamber passing a bill w/ one "Division," and then Congress declaring that "Division 1" is now the law, which is blatantly unconstitutional. Notably, I didn't see you attempt to distinguish the two situations.

I think you've also got it exactly backwards w/ the debt ceiling. Because my constitutional objection is to one chamber, but only one chamber, bundling together multiple bills individually passed by the other chamber for a single vote, I have no problem *in general* with "conditions subsequent" or "deeming legislation passed by rule." There's only a problem if the particular contingency is the unilateral action of only one House. My understanding from your post is that is NOT what was going on with the debt ceiling -- which is precisely why you treated the Murkowski example as different from the debt ceiling. I presume the debt-ceiling contingency was some contingency external to Congress?

Finally, even if the enrolled-bill rule of Field v. Clark would prevent a court from considering the issue -- and I'm not so sure that it would -- that rule doesn't bind the President, who has an independent constitutional obligation to ensure that Art. I, S. 7 is followed. And that's not just my position; it's Marty Lederman's, who's now sitting as a Deputy in OLC, an office which I'm sure would never take political considerations into account. Thus, unless someone can explain why it's OK for one House to individually vote on multiple different bills, while the other House casts a single vote on a bunch of bundled bills -- i.e., how that's any different from one House voting for a bill with six parts, while the other House votes for a bill with four parts -- then I would think the President is constitutionally obligated to veto the bill.


Hashim said...

PS. On the question of Presidential veto, it turns out that it's not just my view and Lederman's, but the Court's in Field v. Clark itself:

"The argument, in behalf of the appellants, is that a bill, signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. In view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted. There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, not in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress."

That said, having reviewed Field v. Clark, the possible distinction i was considering probably won't work, so I concede that this likely isn't justiciable.

Hashim said...

PPS. Indeed, were the President even to so much as decline to opine on the constitutionality of the Slaughter solution, that would be grounds for distinguishing Field v. Clark, since its reasoning was expressly predicated on the President's affirmation that the bill was *constitutionally* enacted:

"The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill thus attested receives his approval and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept as having passed Congress all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act so authenticated is in conformity with the Constitution."

Michael C. Dorf said...

On the justiciability issue, I agree--and have said elsewhere on multiple occasions--that the Pres has an independent duty to make a constitutional judgment on any bill he signs. But I think it quite likely that this President would find this bill constitutional, and with good reason. I understand the claim that one-house-deeming makes the bills arguably different, but that is exactly what has been done in the debt ceiling cases, as I understand them, so the health care bill stands or falls with all the prior examples (discussed at length in the Salon article to which I linked, and in the materials linked therein).

And now I'll be blog-incommunicado for a few days, so I'll have to enjoy further comments upon my return.

Lee said...

Professor Dorf,

In future leave out the politics and the many noted "great irony"s and just explain the darn thing, which you do not do that well. See Denzel Washington in the film Philadelphia.

Bryan said...

Thanks Hashim! Your explanation was very helpful.

AF said...

Hashim --

I think the distinction between this process and your one bill/ two divisions hypothetical is that here we have two separate votes: one for the deeming rule, and one for the reconciliation passage.

So it's not like the House is passing "X plus Y" and the Senate is passing "X." Rather the House is passing X and Y in two separate votes. The only difference is that X -- the Senate bill -- is being passed in two steps.

Dedicated_Dad said...

GREAT example!

I'm sure even the most uneducated Bitter-Clinger will see that *THE* biggest expansion of Government in the history of our Republic, creating at least 100 new agencies, boards and other bureaucratic morasses and seizing control of a further ~18% of the entire economy is *JUST* like a temporary measure to keep Government from shutting down COMPLETELY for a few days while the bugs are worked out of a budget measure.

Yup - gnats and mastodons are IDENTICAL I tell you! And the civil war which is its likely result will be blamed on "racism."

Any kindergartner can see the holes in your so-called "logic."

We The People are not fooled.

God help us - and God Save Our Republic!

Michael C. Dorf said...

"Dedicated Dad": You are responding to a point I was not making. I did not say that the use of this procedure to raise the debt ceiling was a proper political precedent for its use in health care reform. As I stated expressly at the conclusion of the post, my sole concern is with the constitutionality under Art I, Sec. 7. If a procedure satisfies Art I, Sec. 7 for the most inconsequential law, then it satisfies Art I, Sec. 7 for any law. Thus the relevant constitutional text begins "Every
Bill . . . ." As Hugo Black might have said, "Every Bill means Every Bill." Thus, your outrage is misdirected.

Hashim said...

AF -- I don't think your distinction works, because a vote on the rule is not a vote on "x" (the Senate bill). Rather, it's a vote on whether to vote on the Senate bill as an (x + y) package w/ the reconciliation changes. The mere fact that the GOP has a chance to stop the Slaughter solution at the rules stage doesn't change the fact that the Slaughter solution only leads to a vote on the Senate bill as part of a single combined vote on Senate bill + reconciliation changes. There's no way to vote no on Senate bill but yes on reconciliation, or vice versa. So it seems to me no different than passing the two as one big bill w/ two divisions, which everyone agrees would not satisfy Art. I, S. 7.

Mike -- I can't comment intelligently on whether the debt ceiling is legally distinguishable, because I don't know its intricacies. That said, so what if the debt ceiling is indistinguishable? I certainly don't think we can draw any inference from the use of the debt ceiling that there's been a reasoned analysis of its constitutionality. After all, Congress had enacted hundreds, if not thousands, of legislative vetoes before INS v. Chadha, and, incredibly, they continue to routinely include them in bills post-Chadha. This is plainly not an institution that gives even the slightest consideration to whether bicameralism & presentment is satisfied. Witness the fiasco w/ the Deficit Reduction Act a few years ago. And, at bottom, I've yet to see you actually try to explain why the Slaughter Solution is any different from the plainly unconstitutional hypotheticals I've repeatedly and explicitly set forth in these comments. Do you have any argument why the Slaughter solution (which bundles a vote on the Senate bill w/ a vote on the reconciliation changes) is legally distinguishable from voting on one big bill in which the Senate bill is Division 1 and the reconciliation changes are Division 2?

AF said...


You write: "There's no way to vote no on Senate bill but yes on reconciliation, or vice versa." But in fact there: vote yes on the reconciliation bill and no on the rule change (or vice versa).

That's precisely why this isn't the same as passing one bill with two provisions.

Hashim said...

AF -- As I said in my first response to you, I don't understand why you think it's relevant that there's an opportunity to vote against the rule. Once the rule is passed, it *then* becomes impossible to vote yes on the Senate bill but no on reconciliation or vice versa -- the two bills have been tied together by rule and will live or die on a single vote. And, that's critically important, because after the rule's passage but before that future bundled vote, neither bill has been voted on, because, as I noted before, a vote on the rule is *not* a vote on the Senate bill, but instead a vote on whether to bundle a vote on the Senate bill with a vote on the reconciliation bill.

You seem to think this is distinguishable from the (plainly unconstitutional) single bill w/ two provisions, but I can create an antecedent "rule" in that context as well that functions exactly the same. Namely, the House takes a vote on a "rule." And the "rule" is whether Senate Bill 1 and Senate Bill 2 will be joined together into Bill 3, w/ Division 1 (SB 1) and Division 2 (SB 2). Under your logic, this should be perfectly constitutional, because people who want to vote on SB 1 and SB 2 separately can just vote against the rule to combine them into Bill 3. But that's obviously wrong. Just because they lost the "rule" vote doesn't change the fact that a vote for Bill 3 is not the same as two separate votes for SB 1 and SB 2. Right?

To make the example more stark, let's say the Senate has passed 10 different bills in 10 different separate votes. And let's say that the House has those 10 bills, plus another 10 bills that it initiated. Is it really your position that the House, instead of voting on each of those 20 bills separately, can have one "rule" vote on whether to have a subsequent up-or-down vote on all 20 bills, and if the "rule" passes and the subsequent up-or-down vote does as well, then the 10Senate bills all become law even though the House voted for the text of each of those 10 Senate bills in the same vote as 9 other Senate bills and 10 other random bills?

Michael C. Dorf said...

This will be my last comment on this post, but I'll return to these issues next week if the bill passes. This is a long comment so I need to break it in two. Here's part 1:

Hashim would apply a highly formalistic approach to Art I, Sec 7 regardless of the effect on the constitutional balance of powers, whereas the relevant case law is formalistic only where the constitutional balance is threatened. The two most relevant Supreme Court precedents here are INS v. Chadha--invalidating the legislative veto--and Clinton v. City of New York--invalidating the line-item veto. Both of those mechanisms upset the constitutional balance by aggrandizing, respectively, the power of Congress and of the President. As my original post here notes, there is no such aggrandizement in deem-and-pass. (Indeed, its very compliance with the spirit of Art I, Sec 7 led me to question its efficacy as a means by which any member of Congress who votes for it can plausibly disclaim responsibility for a yes vote on the Senate bill.)

Moreover, neither Chadha nor the Clinton case said anything about the circumstances under which a bill is considered to have "passed" a chamber of Congress. Instead, that issue is mostly governed by the "enrolled bill doctrine" of Field v. Clark, under which the House Speaker's signature is definitive proof that the House passed a bill. Now there is some reason to think that the Munoz-Flores case undermines or narrows the enrolled bill doctrine, so that the Supreme Court could look behind the Speaker's signature in some circumstances, but even if so, it remains highly unlikely that the courts would treat as justiciable what amounts to a challenge to a chamber's procedural rules governing what counts as a vote in favor of a bill, given the apparent textual commitment--in Art I, Sec 5--to each chamber to make its own rules.

Michael C. Dorf said...

Here's Part 2:

As a consequence of each house's rulemaking power, there can be no constitutional requirement that the House and Senate express their majority support for a bill using identical procedures. For example, it is of no constitutional moment that the House and Senate versions of a bill come out of differently named committees, or that debate in the Senate lasts longer than in the House, or vice-versa, or that votes are taken by roll call in one chamber but by voice vote in the other. Such differences fall well within the procedural prerogatives of each chamber. It is incumbent on those who would challenge the "deem and pass" approach to show why the use of that procedure in the House but not the Senate is different in kind from the sorts of differences we routinely tolerate as constitutional. And as my original post indicated, if the cloture rule--which makes a substantive difference, not just a formal one--is valid, why isn't deem-and-pass? After all, under the cloture rule, without a super-majority, Senators can't simply vote up or down on ANY bill, while House members can and do.

The best answer I can concoct to distinguish the two situations is to say that a bill that is stymied by the cloture rule never has a chance to become law and so never tests the Art I, Sec 7 rules. But that only explains why the courts would not have the opportunity to pass on the validity of the cloture rule. We are talking here not just about what the courts will adjudicate but what the Constitution requires of conscientious legislators. The cloture rule itself, in preventing a majority of Senators from voting for a bill they support, is a much more substantive departure from the baseline of majority-up-or-down-on-each-bill than is deem-and-pass. And unlike deem-and-pass, which a simple majority in the House can abandon, the cloture rule is itself entrenched against ordinary majority amendment.

That's all I'm going to say on this version of the thread. As I said, I'll revisit the issue somewhat if the bill goes forward in this form over the weekend. Meanwhile, the rest of you should feel free to talk amongst yourselves!

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